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First Amendment Case Law

Cases decided under these core constitutional and statutory provisions have established that freedom of speech includes the following rights, among others:

  • The right not to speak (specifically, the right not to salute the flag)
    West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)
     
  • The right to wear black armbands to school in protest
    Tinker v. Des Moines, 393 U.S. 503 (1969)
     
  • The right to use offensive words and phrases to convey political messages
    Cohen v. California, 403 U.S. 15 (1971)
     
  • The right to engage in symbolic speech (e.g. burning the flag in protest)
    Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990)
     

At the same time freedom of speech does not include:

  • The right to incite actions that would harm others (for example, shouting "fire" in a theater)
    Schenck v. United State, 249 U.S. 47 (1919)
     
  • The right to make or distribute obscene materials
    Roth v. United State, 354 U.S. 476 (1957)
     
  • The right of students to make an obscene speech at a school-sponsored event
    Bethel School District #43 v. Fraser, 478 U.S. 675 (1986)